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Sunday, November 18, 2018

The limits of Spiderman

Ilya Somin has an interesting post wielding the Spiderman Principle--"With great power comes greats responsibility"--to argue against judicial deference to the executive and supposed executive expertise in those areas, such as immigration and national security, in which the executive is believed to have the greatest power. Under the Spiderman Principle, the fact that executive power is so great in these areas requires greater judicial scrutiny and greater justification from the executive, to ensure that this power is used responsibly and not abused.

I agree with Ilya that excessive judicial deference is a problem. But it seems to me the Spiderman Principle does not get us very far, because it cuts both ways. The courts would argue that deference and referral to expertise is compelled by the Spiderman Principle--it is how they bring some responsibility to temper the exercise of their great power to declare invalid the executive's conduct.

Posted by Howard Wasserman on November 18, 2018 at 10:32 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

Comments

"Spider-Man," not "Spiderman"

Posted by: emh2137 | Dec 10, 2018 3:00:50 PM

Paul--

Have you ever heard of a thought-experiment or even a liberal arts education?

Can you imagine a scenario in which you disagreed with the policy implications of an expert's testimony--not, can you imagine disagreeing with an expert, BUT can you imagine disagreeing with the policy implications of their expertise?

And if you did, would you simply go along with their policy implications even if you disagreed with those policy implications simply because you agreed with their expertise? Or would you rather educate people on the dangers of an activity that the CDC says could lead to x, y, or z, but still allow them to do that activity--like recreational drug use, anal sex, etc.?

Posted by: Legoless | Nov 20, 2018 7:51:42 AM

Paul--

Do you even understand what a hypothetical is?

IF the CDC came out against something you enjoy--like marijuana or anal sex--would you want the court to just uphold a prohibition against it because the experts at the CDC said it increased one's odds of lung cancer or AIDS? OR would you rather the courts say that people still have the right to choose how to live their lives, like they did in Lawrence v. Texas?

Posted by: Not a Paul | Nov 20, 2018 7:42:59 AM

The CDC as well as the VA, AHRQ, US DoD, and some NGOs fund systemic reviews of the medical literature and clinical trials to develop guidelines and guidance for the evidence-based practice of medicine. The systemic reviews assess and evaluate benefits and harms associated with various treatments, interventions, and drugs. These reviews allow the medical practitioner as well as the patient to make informed decisions on treatment and care.

Posted by: Paul Sonnenfeld | Nov 19, 2018 8:54:07 PM

Interesting . Speaking of action in bad faith of governmental agency or official , it is very recommended to read recent ruling of the Supreme court ( very short , bit more than 3 pages ) where a discovery of extra records is sought by petitioners , due to claim of bad faith . Here :

https://www.supremecourt.gov/opinions/18pdf/18a375_k536.pdf

Thanks

Posted by: El roam | Nov 19, 2018 2:26:11 PM

Didn't the experts tell is the Fairness Doctrine would prevent someone like Reagan from becoming president, and therefore prevent someone like Scalia from getting on the Court?

So how much expertise do these experts have?

Posted by: The FCC's snake oil | Nov 19, 2018 8:43:53 AM

Perhaps the Spiderman Principle is to remind us that legislation not only doesn't always work, but can backfire and make things even worse.

We might think that because we have the power to tax, that we should tax the behaviors we can't outlaw to decrease their frequency. But oftentimes the market for said product just goes underground--see the cigarette market in New York City.

And then when taxation doesn't work (people who sell untaxed cigarettes are killed "for being black" like Eric Garner), we outlaw the product--like alcohol prohibition. But that often causes people to drink even more often because it is not only enjoyable but now serves as a symbol of the resistance against the government. Drinking becomes the middle finger that you always want to be exhibiting.

Posted by: Garnering Spiderman's Attention | Nov 19, 2018 6:45:52 AM

I think the question becomes, does the person in power actually possess expertise?

If the CDC says that students who pray during class have lower blood pressure, is that expertise, and does it make the separation of church and state unconstitutional? Or is it not expertise but just interesting trivia?

What should the CDC study, and which studies would constitute expertise and which would constitute trivia that shouldn't invalidate Warren Court precedents?

Posted by: The Venom Principle | Nov 19, 2018 6:29:37 AM

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